The Guantanamo Obsession and the Prisoners Who Will Neither Be Tried Nor Released

January 23, 2010

Barack Obama is stuck with another of his campaign pledges. There are still nearly 200 prisoners in Guantanamo. I, for one, do not care if they are moved to a jailhouse in Illinois. But I still wonder what is wrong with that tip of Cuba (which happens to be U.S. territory) functioning as a penitentiary.

In any case, the deadline that candidate Obama set for President Obama to meet--the end of last year--has now passed. And, given the administration’s dire electoral and legislative troubles, I doubt that the president and his attorney general are about to engage the Congress and the people about shutting down Guantanamo, however late or early they can engineer a move--if they can ever.

For the emotional gratification of his supporters, the Democratic nominee argued that photographs from Abu Ghraib and Guantanamo were recruiting tools for Al Qaeda--as if the terrorist international required visual proof of the evils of the United States. Anyway, it was not an argument; it was a hymnal. It made the cheery also seem worthy.

Well, Abu Ghraib is now Iraq’s, and the Iraqis have refurbished it. But who can guarantee that any Arab polity will exclude torture as a tool of governance or a means to justice?

Which leaves us with Guantanamo.

Of the 196 detainees now imprisoned on the beautiful Cuban coast, nearly 50 have no hope of being freed and also no prospect of being tried. These inmates are, as Charlie Savage reported in yesterday’s New York Times, “too difficult to prosecute but too dangerous to release.” This is a body blow to the pomposity with which the Obami had insisted that everyone is entitled to a fair trial.

But is not only these prisoners who are strung between the Scylla and Charybdis of judicial action and non-action.

There are also about 110 detainees who were set to be sent to other countries for possible release. There are many countries that won’t have their sons back. And there are several countries where one can guarantee that they’d be tortured. Others from a similar cohort had already been coolly dispatched to Yemen, where evidence mounted that at least some (and perhaps many) of them had been embraced by the ideological blanket of Al Qaeda. The Obama Justice Department is no longer releasing prisoners to Yemen, which is now--and has for several years been--a center of jihadism.

Then there are nearly 40 prisoners whom “the administration has decided ... should be prosecuted for terrorism or related war crimes.” But how should they be prosecuted? In civilian court? Or by military commission? Frankly, I don’t understand the difference in reasoning for one or the other.

Except this: In a civilian court, defendants like Khalid Sheikh Mohammed could easily turn the proceedings into propaganda sessions. I also can imagine an inconclusive verdict.

For other objections to a civilian court for KSM and his fellow murderers, see the op-ed by my friend James Q. Wilson in yesterday’s Wall Street Journal.